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Will Justice Kennedy Say 'You Do' in Wedding Cake Case?

By George Khoury, Esq. | Last updated on

The closely watched Masterpiece Cakeshop case may be a far cry from Masterpiece Theater, but all eyes were certainly on Justice Kennedy during the case's oral argument. Commentators have long expected that Justice Kennedy would be the swing vote deciding the matter.

Unfortunately for the commentators, Kennedy did not provide a very clear indication of any potential leanings. In fact, he seemed to swing back and forth during the arguments, appearing to support either side at various times.

A Divided Court

Conservative Justices, like Alito, Gorsuch, and Roberts, seemed to clearly be sided with the baker, while the more liberal justices seemed to ask questions geared towards swaying their conservative counterparts and likely Justice Kennedy as well.

Many comparisons were made, and the right of a baker to deny a same-sex couple a wedding cake was analogized to nearly every other service available to the public. The justices seemed curious as to where the line could be drawn when it comes to a public accommodation denying services to a same-sex couple.

Kennedy Concerned

Although Justice Kennedy didn't seem all too pleased with any of the answers he got, one seemed to particularly trouble him. When asked whether the bakeshop could hang a sign that stated it would not bake cakes for same-sex weddings, the bakeshop's lawyer responded affirmatively, noting that it would be permissible only if the cakes were custom made. Kennedy stated he believed such a sign would be an "affront to the gay community."

An issue for the Colorado Civil Right Commission that Kennedy seems hung up by was one comment made by a commission panel member. The member stated that discrimination under the guise of religious freedom is a "despicable piece of rhetoric." Kennedy appeared bothered by the fact that this statement potentially taints the commission's decision with religious hostility.

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